Asset Protection

12 recent conference papers – over 350 pages or 87,000 words of original and exclusive writing which looks directly at the major risks to wealth: business failures, marriage failures, division of assets between creditors and between spouses.

The papers were delivered at the Executive Wealth Preservation Conference held in Toronto on March 5 and 6, 1997. (Sessions chaired by Jeffrey C. Carhart, Miller Thomson, and Clifford S. Nelson, Ricketts, Harris.)

To purchase, please contact Federated Press.

Robert M. Halpern, Torkin, Manes, Cohen & Arbus

Protecting the Family-Owned Business

• Reasons for Protection: Impact of Part I of the Family Law Act
• Obtaining information before establishing a protection technique
• Two protection techniques: the domestic contract and the shareholders agreement
• Excluding shares from equalization or attack
• Inclusion of "value" for equalization purposes
• Requirements for holding corporations with buy-out where a default
• Interplay between the domestic contract and shareholders agreement

Gerald P. Sadvari, McCarthy Tétrault

Estate Freezes: Shielding Family Assets from Division

• "Saving" property transferred under old estate freezes
• Why estate freezes remain useful despite the Family Law Act
• The uncertainty in corporate law regarding contracting out of statutory protections
• Turning a deduction into an exclusion: re-freezing
• Transferring wealth within the family
• Deferring significant tax consequences

Stephen B. Smart and Sonia Bjorkquist, Osler, Hoskin & Harcourt

Preserving Wealth Upon Marital Dissolution

• Recognizing the objectives of spousal support orders
• Equitable sharing: the impact of the Supreme Court ruling in Moge
• The rise and fall of lump sum compensatory support orders
• Child support guidelines: assessing the proposed legislation
• Domestic contracts: their evolving treatment under the Divorce Act
• Creating a well-defined, fair settlement

Wayne B. Rudson, Richter & Associates Inc.

Minimizing the Equalization Payment

• Creative funding: alternatives to cash
• Incorporating a real estate holding company
• Using domestic contracts to exclude assets
• Gifts: ensuring their traceability
• Deductions for a matrimonial home
• Loans to children: the need for proof

Laurie H. Pawlitza and Danielle Szandtner, Goodman and Carr

The Value of Property – Costs of Disposition

• What are the costs of disposition?
• How do the costs of disposition affect an equalization payment upon marriage breakdown?
• When do judges take costs of disposition into account?
• Can a payor minimize an equalization payment using costs of disposition?

Michael S. Penner, Marmer Penner Inc.

Conflicts Over Value

• The valuator’s role
• Types of valuation reports: useful distinctions
• Joint retainers: pros and cons
• Valuation terminology: definitions
• Valuation issues in computing net family property

Jeffrey C. Carhart, Miller Thomson

Protecting a Home from Creditors

• Reviewable transactions: attacking efforts to hide an interest in a home
• Practical aspects of transfers in the face of a lawsuit
• The impact of basic matrimonial legislation
• Creditor-proofing for a single person
• The use of trusts in long-term creditor-proofing strategies of spouses
• Considerations where a home passes to a trust

Donald E. Short and Scott Rollwagen, Fasken Campbell Godfrey

Creditor-Proofing Pension Assets

• Exempting certain annuity contracts from seizure
• Ensuring the effective designation of a beneficiary
• Understanding the principles underlying Ramgotra
• Transfers under Ontario’s Fraudulent Conveyances Act
• The concept of a "judicial act" under the Quebec Civil Code
• Revenue Canada’s special status as a creditor

Edward A. Sellers and Heidi Clark, Fraser & Beatty

Creditor-Proofing Personal Assets

• Avoiding the pitfalls: transfers for insufficient consideration
• The need for complete information
• Ensuring sufficient consideration: why "natural love" is insufficient
• The impact of timing and material elements
• Structuring asset transfers, reorganizations and liquidations
• Examining the ethical issues

Carl Spiess, ScotiaMcLeod Inc.

Portfolio Protection

• Reducing risk: diversification and appropriate asset allocation
• Evaluating the features of new GIC product hybrids
• Immunizing retirement portfolios from interest rate risk
• Enhancing returns at the accumulation stage
• Purchasing life insurance for the estimated tax liability
• Maximizing life insurance by accelerating RIF payments

Bernard R. Wilson, Price Waterhouse

Personal Bankruptcy as a Way Out?

• Petitions for a Receiving Order: who may file and when
• Statutory rights of the trustee
• Filing a petition to reverse statutory priorities
• Debtor responses: consent, dispute, fail to appear
• The importance of following a petition through to the end of the process
• What to do if a customer goes bankrupt

Robin K. Basu, Genest Murray DesBrisay Lamek

Protecting Corporate Decision-Makers’ Assets

• Indemnities and exculpations in corporate articles, bylaws and resolutions
• Claims by or on behalf of the corporation
• Statutory precondition to permissive indemnification in civil matters
• Patron-nominee indemnification
• Duty of directors with respect to indemnification
• Insurance: limits, deductibles, retentions and premiums